Diving Catch   

An unusual change of heart by a federal appeals court protects the right of reviewers and other journalists to express their opinions.

In 1964 there was New York Times vs. Sullivan , the first U. S. Supreme Court decision holding that the Constitution forbids public officials from using the libel laws to punish the press for criticizing them in print. In 1971, there was New York Times vs. United States , popularly known as the "Pentagon Papers case," in which the Supreme Court held that the First Amendment makes it virtually impossible for the government to keep the press from publishing, even when doing so may endanger national security.

Now there's Moldea vs. New York Times , the case in which the U. S. Court of Appeals for the District of Columbia, generally acknowledged to be second in judicial influence only to the Supreme Court itself, performed a breathtaking about-face. A little more than 10 weeks after issuing a decision that severely restricted the First Amendment rights of journalists to publish their opinions, the court changed its mind and struck a dramatic blow for free expression.

This decision's influence could extend beyond just opinion pieces, affecting even investigative journalism. If the Moldea decision sticks –

Moldea's expected to seek a Supreme Court review – it might well take its place alongside Sullivan and the Pentagon Papers case as a cornerstone of our nation's commitment to a free press.

This is no small achievement, especially since the Moldea decision arises not from momentous public events that have shaped our recent history, like the civil rights movement ( Sullivan ) or Vietnam (the Pentagon Papers), but rather from a routine review of a book about football. Dan Moldea, the author of "Interference: How Organized Crime Influences Professional Football," claimed that in September 1989 the Times defamed him by publishing a book review that, among other things, characterized Moldea's book as containing "too much sloppy journalism." The trial judge dismissed the case virtually at its inception on the ground that the conclusion of the reviewer – Times sportswriter Gerald Eskenazi – was an expression of opinion, which Moldea would be unable to prove false.

As these things go, the court's decision was unremarkable, and most legal observers anticipated that it would be affirmed on appeal. This expectation was reinforced when the Times drew what appeared to be an extraordinarily favorable panel of three judges to review the decision. Comprised of Chief Judge Abner Mikva and Judges Patricia Wald and Harry Edwards – the only three appointees of President Carter remaining on the court – the panel had a solid record of support for First Amendment claims. In addition, the D.C. circuit court has had a distinguished record of protecting the press from libel claims, including an important 1984 decision upholding the right of columnists Rowland Evans and Robert Novak to characterize a Marxist political scientist as having "no status" within his profession.

On February 18, that era appeared to be over. Despite Mikva's spirited dissent, Edwards and Wald held that by characterizing Moldea's book as containing "too much sloppy journalism," the Times review "attacks Moldea's competence as a practitioner of his chosen profession, a matter archetypically addressed by the law of defamation." (See "The Press and the Law," May.)

The court rejected the Times' argument that, in the context of a book review, readers would understand the reviewer's comments to be merely expressions of opinion. "[I]t would make little sense," Edwards wrote, "to craft a rule that permitted otherwise libelous statements to go unchecked so long as they appeared in certain sacrosanct genres." Therefore, according to Edwards and Wald, it was of no legal relevance that the "challenged statements appeared in a 'book review' rather than in a hard news story."

The panel majority concluded that stripped of its context, the review's reference to "too much sloppy journalism" could be the basis for a libel suit because it "reasonably can be understood to rest on provable, albeit unstated, defamatory facts." In othýr words, even if the review had been a single sentence containing only the reviewer's conclusion that the book contained "too much sloppy journalism," it would be "inescapable" that it "implies certain facts – that Moldea plays fast and loose with his sources...."

The court did not stop there, however. Edwards' opinion also concluded that two of the examples the review used to support its conclusion could be proven false as well. The two offending examples – the review's suggestion that the book "revives" the discredited notion that the owner of an NFL franchise had been murdered and that its description of a meeting between two football rivals prior to Super Bowl III was "sinister" – could be construed by a jury to be false characterizations of the book. If so, the court concluded, the jury could find the review's invocation of them as examples of "sloppy journalism" false also.

Thus, even though the court acknowledged that the review offered other examples to support its conclusions, including the undisputed fact that "Interference" contains several errors in spelling and fails to reveal in its text (rather than in a footnote) important information about an incident it describes, Moldea could still maintain his defamation claim.

Based on this analysis, the Court of Appeals reversed the trial court's decision and set about to return the case for pretrial "discovery." Although Edwards took pains to explain that Moldea may not ultimately prevail, or even get as far as a trial, he was entitled to attempt to prove through pretrial "discovery" that he had a viable enough case to present to a jury. This "discovery" period would typically include the Times answering written questions under oath, producing documents related to the cha – ges, providing depositions from those involved in the publication of the review and filing additional motions, all before the case even got to trial.

From a legal perspective, the court had taken two regrettable steps. First, it had abandoned – without much discussion – its prior decision in the Evans and Novak case, which found that column's reference to the plaintiff's "status" was not grounds for a suit because of the context in which it appeared: a spirited piece of op-ed advocacy. (This should not have come as a surprise, since despite their frequent support of First Amendment rights, both Edwards and Wald had dissented in that case.)

Second, it relied on the Supreme Court's 1990 decision in Milkovich vs. Lorain Journal , in which the court upheld a high school wrestling coach's claim against a sports columnist who accused the coach of lying under oath. That decision called for the same result in Moldea, the court wrote. This conclusion was particularly distressing to media lawyers who had long feared that the Evans and Novak case would be overridden by Milkovich but remained convinced that it shouldn't.

The significance of the panel's decision could not be overstated. There would be little that writers and their editors could do to signal to readers and viewers that reviews, columns and editorials were designed to express views, opinions and commentary, not hard facts. As a result, the disgruntled subjects of criticism – from authors, athletes and performers to politicians, corporate executives and world leaders – could bring defamation claims, forcing the news media to defend them, at the very least, through the expensive and time-consuming process of pretrial discovery.

Under such a threat, news media defendants would routinely be required to spend a handsome sum, in both attorneys' fees and time, answering interrogatories, responding to requests for documents, and in making their staffs available for depositions. Even if a defendant prevailed before going to trial, it would be a substantial price to pay for publishing or broadcasting criticism.

These concerns led the Times, supported by a host of other news organizations as amici curiae (friends of the court), to ask the Court of Appeals to reconsider. They included not just the publishers of newspapers, magazines and newsletters, but also the Association of American Publishers, the trade organization of the book publishing industry, and the PEN American Center – those with the most to lose in the wake of an unfavorable book review. One of the amicus briefs was written by Kenneth Starr, the former solicitor general and D.C. circuit judge who had written the influential opinion in the Evans and Novak case. In their most wistful moments, the Times and its supporters imagined that the entire 11-member court would agree to hear the case, an unlikely but not unprecedented result. Curiously, the court denied motions for the amicus briefs to be filed.

The unexpected is, in fact, what happened. On May 3, the original panel of three judges, in a new, unanimous opinion also written by Edwards, announced that its original decision had been a "mistake of judgment" and reinstated the trial court's ruling in favor of the Times. Acknowledging his own "distress," Edwards adopted the aphorism previously expressed by Supreme Court Justice Felix Frankfurter: "Wisdom too often never comes, and so one ought not to reject it merely because it comes late."

Ironically, it appears that the importance of the Moldea case has been enhanced by the notoriety it received in the wake of the court's dramatic turnaround. The reversal ensures a stature for the case it might not have otherwise received, even though what Edwards' second opinion has to say is, on its own merits, essential to the vitality of the First Amendment.

While the immediate impact of the court's decision will be felt by reviewers, columnists and editorial writers, it is likely that its influence will quickly extend to all journalists. This is because Edwards' opinion in Moldea II , as it is called by the court itself, answers three very important legal questions that have enormous practical ramifications for working journalists: What role does the First Amendment play in determining whether a journalist's published articles can properly be the subject of a libel lawsuit? When, in the life of the lawsuit, is that decision made? And who makes the initial decision, the judge or the jury?

Moldea II leaves no doubt that the First Amendment prohibits rulings for plaintiffs in defamation suits based on statements that, in context, can't be proven to be false or defamatory. Edwards confessed that his original decision "failed to take sufficient account of the fact that the statements at issue appeared in the context of a book review, a genre in which readers expect to find spirited critiques of literary works that they understand to be the reviewer's description and assessment of texts that are capable of a number of rational interpretations."

Thus, Moldea II embraces anew the Evans and Novak decision, explains persuasively that its value as precedent was not diminished by Milkovich, and emphasizes the "importance of context" in First Amendment analysis. The court holds that where an allegedly defamatory statement, like those challenged by Moldea, "is tied to the work being reviewed" and "is a supportable interpretation of the author's work," that interpretation cannot be the basis of a defamation suit.

In addition, Moldea II endorses the view that the publication must be scrutinized at the outset of the case by the trial judge to ascertain whether, in context, that legal test has been met. This, Edwards emphasizes, is an issue of constitutional law to be decided by the judge, not a question of fact to be the subject of discovery and trial. As a result, many lawsuits like Moldea's can and will be dismissed before the plaintiff can expose news media defendants to the burden and expense of protracted litigation.

The constitutional analysis in Moldea II promises to extend its influence beyond the narrow genre of book reviews, and even beyond the realm of commentary and opinion writing. Just as reasonable readers would understand the Times review to contain no more than the reviewer's unverifiable assessment of Moldea's book, those same readers appreciate that most hard news reports, even investigative pieces, do not endorse (but simply report) the defamatory sentiments attributed to participants in the controversies reported on.

1hen the Supreme Court announced its decision in New York Times vs. Sullivan , Alexander Meiklejohn, the revered philosopher of freedom of expression, remarked that it was "an occasion for dancing in the streets." Moldea II may not warrant such a public display of celebration, but journalists do have reason to permit themselves a little jig in the privacy of their newsrooms. l